19 April 2020

Once Upon a Time in the West

This is not a a spaghetti western. Neither is it classic rock. No, this is instead a tale of Manifest Destiny. And colonialism. And white male privilege.

The IWTBF ("Information Wants to Be Free"1) movement is doing exactly what the white American settlers did in spreading across the nation: Through a self-justifying mode of "might is right," displacing those who were there first — of right — through the use of superior technology and greater individual financial resources without regard to any externalities whatsoever.2 Indeed, the actual owners of those rights — the creators — are being consulted with the same level of respect, advance notice, and willingness to admit that another point of view might have validity as were the Native Americans3 (that is, none whatsoever). Things get a bit more disturbing when one compares the demographics of Kahle's organization, the major users of Kahle's organization… and creators of works stolen by Kahle's organization, whether directly or through a fencing operation that even Gideon's Pawn Shop would reject as too obviously stolen.

One doesn't get to ignore negative externalities just because there are some personal benefits to the actor (and sycophants). Not even by purporting to spread some of those benefits to others: It's economically inefficient to redistribute capital from those unable to resist (and who may not even know of the looting) to others just because the transactions/abilities theoretically exist. This really exposes the foundations of political economy in a way ignored by the MBA and finance communities. It's not about "rational self-interest"; it's about "enlightened self-interest." Adam Smith, for example, wrote foundational works in political economy as moral inquiries, and explicitly rejected the mere ability to cause a transaction as proper (or "efficient").

A library is my natural habitat (well, once all of the helpless swimmers have been "dealt with"). But a library properly purchases and/or licenses its collection, meaning that the creator gets paid. In short, libraries are not the wild, wild west — not even close (hell, in the current environment libraries pay substantially more for each copy of the works on their shelves than do consumers). I'm insulted by and resent the attempt to relabel outright piracy as a "library" that follows none of the rules that libraries do.4

So I'll head on back to the ranch. As a nonsmoker, I'm not chewing a cheroot; it's a dry, cool day, so I'm not wearing a ratty old poncho; but I'm not entirely unarmed, either, even if horseback is no longer an option.

P.S. What this says about how intellectual property and related issues are more about mercantilism than capitalism — and the, umm, non-backward-compatibility involved in imposing capitalist value systems and methods on working mercantilism without replacing the mercantilist systems, let alone allowing for transitional states — is for another time, another forum, another few hundred footnotes.

  1. Compare Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 344–45 (1991) ("That there can be no valid copyright in facts is universally understood. The most fundamental axiom of copyright law is that '[n]o author may copyright his ideas or the facts he narrates.'") (internal citation omitted) with Harper & Row, Publ'rs, v. Nation Enters., 471 U.S. 539, 547 (1985) ("Creation of a nonfiction work, even a compilation of pure fact, entails originality") and New York Times Co. v. Tasini, 533 U.S. 483, 497–98 n.6 (2001) ("[E]ven if the dissent is correct that some authors, in the long run, are helped, not hurt, by Database reproductions, the fact remains that the Authors who brought the case now before us have asserted their rights under [17 U.S.C.] § 201(c). We may not invoke our conception of their interests to diminish those rights").

    The fundamental problem with IWTBF is that its advocates want to define everything as mere "information" — the uncopyrightable facts derided as such in Feist. Whether or not there's some justification for that due to the form it appears in, the relationship between Feist (which cites Nation Enterprises with approval) and Nation Enterprises rejects it as a universal proposition.

  2. The relationship between the series of tubes that became the internet and the railroad that sent the assassin to take the property it wanted because it would be cheaper than creating a railroad route that didn't infringe others' rights in Leone's film also bears some consideration. At some length, especially regarding the reification of intermediate, obtained-through-informational-asymmetry capital accretions as having superior rights.
  3. The less said about parallels to the East India Company, with its overt pirateprivateer fleet and direct government patronage and semiofficial approval of self-interested side trades by its officials (so long as the victims of the expected sharp dealing were non-Christians and preferably dark-skinned), the better. In many ways, it's an even closer parallel to this set of circumstances than was the manifest destiny of American westward expansion… especially since the 'net has already suffered two (and perhaps three) bouts of tulipomania.
  4. This is yet another flaw in the Copyright Act. Libraries have a number of privileges, not limited to § 108(g). However, nowhere in the Copyright Act — indeed, nowhere in the United States Code — is there a clear, unamibiguous definition of what a "library" is.